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[2012] ZAKZDHC 46
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Persian v Wyles NO and Others (2403/2012, 1855/2012) [2012] ZAKZDHC 46 (10 August 2012)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 2403/2012
1855/2012
In the matter between:
SATYENDRA PERSADH
…..........................................................................
Applicant
and
JOHN WYLES N.O., M.A.A WYLES N.O.,
W. SENZENI N.O & E. MSELEKU
N.O.
(TRUSTEES OF IAN WYLES AGENCIES
TRUST t/a
IAN WYLES AUCTIONEERS AND
APPRAISERS)
….....................
First
Respondent
HARESH OUDERAJH
….............................................................
Second
Respondent
BINA BENE OUDERAJH
…............................................................
Third
Respondent
BOSCHRAND BELEGGINGS EDMS BPK.
….............................
Fourth
Respondent
REGISTRAR OF DEEDS FOR THE
PROVINCE OF KWAZULU-NATAL
….............................................
Fifth
Respondent
JUDGMENT
HENRIQUES J
Order in respect of
Case No
1855/2012
1. The application is dismissed with
costs.
2. The applicant is directed to pay
the costs of the first to fourth respondents, such costs are to
include those consequent on
the employment of two counsels where
applicable.
Order in respect of
Case No
2403/2012
The application is dismissed.
The applicant is directed to pay the
second, third and fourth respondents costs occasioned by the
application, such costs to include
the costs consequent upon the
employment of two counsel where applicable.
Nature of the Applications
In the matter under case no.2043/2012
the parties agreed to a consent order before Balton J, on 2 March
2012. In terms of the
consent order, the first and fourth
respondents undertook to withdraw the transfer of the immovable
property lodged for registration
with the fifth respondent and
further undertook not to lodge the transfer pending the outcome of
the application under case number
1855/2012.
Consequently, the only remaining
issue to be determined in that application are the costs occasioned
by the application. These
would be the costs of the 2
nd
,
13
th
and 28
th
March 2012. The applicant seeks
an order directing the first to fourth respondents to pay the costs
occasioned by the application,
such costs consequent on the
employment of two counsel.
The merits and costs of this
application cannot be considered in isolation from the application
under case number 1855/2012.
In respect of case no. 1855/2012, the
applicant seeks a declaratory order and an interim interdict. The
orders sought are as follows:
“
1. That
the Applicant’s non-compliance with the Rules of Court be
condoned and that the forms and service provided for in
the Rules be
dispensed with in terms of the provisions of Rule 6 (12) of the Rules
of Court.
2. That a rule nisi do issue
calling upon the respondents to show cause, if any, on or before the
day of 2012, why orders in the
following terms should not be granted:
an order declaring that the sale
by Public Auction on the 25
th
January 2012 of the
immovable property description bearing the Title Deed description:
Lot 3141, Registration Division FU,
Province of Kwa-zulu Natal and
which bears the physical address: 36 Gizenga Street, KwaDukuza,
Kwa-Zulu Natal, is invalid and
is set aside;
an order that:
the first to fourth respondents
are interdicted and restrained from giving effect to the sale by
Public Auction on the 25
th
January 2012 of the
immovable property bearing the Title Deed description: Lot 3141,
Registration Division FU, Province of
Kwa-Zulu Natal and which
bears the physical address: 36 Gizenga Street, KwaDukuza, Kwa-Zulu
Natal;
the first to fifth respondents
are interdicted and restrained from transferring the above
property to the fourth respondent
pursuant to the above auction
sale;
3. That the relief set forth in 2.2
above operate as an interim order with immediate effect pending the
final determination of this
application alternatively pending the
final determination of an action to be instituted by the applicant
for an order in terms
of para 2.1 hereof.
4. That the costs of this
application be paid by the first respondent, alternatively by the
first respondent and any other person
who opposes the relief sought
by the applicant herein, jointly and severally, the one paying the
other/s to be absolved, such costs
to include the costs consequent on
the employment of two counsel.”
The second and third respondents have
lodged a conditional counter-application, and paragraph 1 of the
order sought would deal
with one of the applicant’s complaints
in seeking the declaratory relief.
The terms of that order, inter alia
authorises and directs the auctioneer to conduct the auction of the
immovable property, in
accordance with the usual practice of such
auctioneer in conducting such auctions, as set out in the first
respondent’s
standard terms as applicable at the date of the
sale, including but not limited to the placing of suitable
advertisements, and
in compliance with the Consumer Protection Act.
I propose to deal with the
application under case no 1855/2012 first.
Having regard to the affidavits
filed, the issues for determination as raised by the parties are the
following:
whether the applicant has met the
requirements for the granting of the interim interdict;
whether the auction sale of the
immovable property is invalid and falls to be set aside, as a
result of a material deviation
from the standard terms and
conditions used to conduct the sale, and those standard terms and
conditions authorised by the
order of 1 December 2011.
in the event of the answer to 8.1.
and 8.2 above being yes, then whether the second and third
respondents have made out a case
for the granting of the order
sought in the conditional counter–application.
The essential question to be
considered in my view is the interpretation of paragraph 1.1. of the
court order of Madonsela AJ
of 1 December 2011 , under case no
4807/2011, specifically what is meant by “
conduct a proper
auction… in accordance with the usual practice of the said
auctioneer in conducting such auctions, set
out in its standard
terms and conditions….”.
In doing so one must consider the
background to the application and the circumstances under which the
order was granted.
Background
The parties, specifically the second
and third respondents have been engaged in what can only be termed
acrimonious litigation.
The litigation between them dates back
considerably. This is evident if one has to have regard to the
affidavit of the first
respondent. The applicant has launched no
less than 5 interdict applications to retain his interest in the
property. These are
under the current case number and inter alia
case numbers 11769/09; 6396/2010; 13768/2010; 15639/2010 and
493/2012.
It would appear that the second and
third respondents acquired a half share in the immovable property,
as a result of certain
settlement agreements concluded based on
monies loaned and advanced to the applicant.
The applicant, second and third
respondents are co-owners in equal and undivided shares of the
aforementioned immovable property
pursuant to a a declaratory order
entitling the second respondent to an undivided half share in the
property, issued by Jappie
J on 4 May 2010. In terms of the court
order, on registration of such undivided half share, co-ownership in
the property was
to be dissolved by selling the immovable property
by way of public auction by auctioneers Auction Alliance.
An auction sale was conducted which
was subsequently set aside after several interlocutory applications
and interim interdicts.
The applicant objected to the appointment of
Auction Alliance.
Subsequently, on 1 December 2011,
this court appointed the first respondent to sell the immovable
property by way of public auction.
The order issued by Madonsela AJ
provided for the first respondent to “
do all things
necessary to give effect to a proper auction of the said immovable
property, in accordance with the usual practice
of the said
auctioneer in conducting such auctions set out in its standard terms
and conditions, including but not necessarily
being limited to the
placing of suitable advertisements.
” The reserve price for
the immovable property was the sum of R14 million.
The application was instituted by the
second and third respondents. However, it was the applicant who
sought the appointment of
the first respondent pursuant to a counter
application lauched in those proceedings.
This order was issued pursuant to a
supporting affidavit filed by the first respondent through its
trustee John Wyles. In that
affidavit he confirmed that the auction
would be conducted in accordance with the usual practice of Ian
Wyles Auctioneers when
conducting such auctions and annexed to his
affidavit a copy of Ian Wyles standard terms and conditions in
conducting such auction
sales.
Wyles states that he was contacted
for the first time regarding the affidavit on the morning of 1
December 2011 and he was requested
to sign the affidavit as a matter
of urgency, and annex a copy of the standard terms and conditions
used in auction sales. He
goes on to say that at the time that he
did so he did not know the circumstances to which the auction sale
would relate and that
there was no such thing as standard terms and
conditions.
He goes on to explain that there is
no such thing as standard terms and conditions applicable to
auctions as there are various
types of auctions each requiring their
own terms and conditions.
It is common cause between the
parties that clause 4 of the terms and conditions relating to the
receipt of further offers referred
to in the terms and conditions
annexed to his affidavit, were not included in the conditions of
sale. In addition, the clause
requiring the sellers to confirm the
sale within seven days was also excluded. Wyles indicates that on
receipt of the court order
he became aware that this was a forced
sale and elected to alter the auction conditons to one more suitable
to a forced sale.
This is consistent with the right
reserved in the auction brochure namely that the auction conditions
were subject to change without
prior notice. Consequently, the sale
became a sale at the fall of the hammer subject to the reserve
price. The change in the
conditions was essential because of the
litigation between the parties and it was foreseeable that a
disgruntled party would
frustrate the auction.
The new auction conditions were
available for public viewing on the first respondent’s website
with effect from 10 January
2012. In addition they are available for
inspection and are read out prior to the auction sale. The
applicant’s former
attorneys engaged Wyles in correspondence
prior to the auction sale taking place on 25 January 2012, and did
not take issue regarding
the changes in the auction conditions,
specifically the non inclusion of the terms relating to further
offers as well as the
seller’s confirmation of the sale.
Subsequently on the 24 January 2012,
under case no 493/2012 a further application for an interdict was
issued. An explanatory
affidavit was filed by the first respondent
in response to the allegations of the applicant. Interestingly
enough the applicant
never complained regarding the exclusion of
these two clauses as a basis for staying the auction.
At the auction sale the purchaser
Moosa, bid R 14.5 million for the property. He nominated the fourth
respondent as purchaser.
The applicant made a written offer to
purchase the property for R15 million but such offer was rejected on
the basis that the
property was sold at the fall of the hammer.
Summary of the Submissions
In summary the respective parties
submissions are the following. The applicant seeks to have the
auction sale set aside as he
alleges that the order of 1 December
2011 in case number 4807/2011, authorises the first respondent to
conduct the auction sale
in accordance with the standard terms and
conditions referred to in the affidavit filed by the first
respondent in that application.
Consequently, the applicant contends
that in light of the fact that the clauses relating to further
offers and the sellers confirming
the sale was not included in the
conditions of sale, there was a material deviation from the court
order which vitiates the sale.
The ordinary rules of interpretation
apply and the court order must be interpreted on its ordinary
grammatical meaning. In addition,
he submits that the provisions of
the Consumer Protection Act read together with the regulations do
not apply.
The first and fourth respondents
submit that the applicant has not established the requirements for
an interdict. In addition
the first respondent alludes to the
history of litigation between the parties and avers that he was
entitled to amend the conditions
of sale to bring them in line with
the usual practice relating to the conduct of such forced auction
sales.
This entails the auction sale and
conditions complying with the provisions of the Consumer Protection
Act and the regulations
thereto at the time of the auction.
The second and third respondents
submit that what was contemplated by the order was that the auction
sale would be conducted in
terms of the usual practice of the
auctioneer set out in its standard terms and a condition prevailing
at the time the auction
was conducted. The terms and conditions
applicable were those relating to forced auction sales.
What meaning must be ascribed to
the phrase to give effect to the words in the order …
.”.to
give effect to a proper auction of the said immovable property, in
accordance with the usual practice of the said auctioneer
in
conducting such auctions, set out in its standard terms and
conditions mean
”?
Does it mean, as the applicant
contends, a proper auction is conducted in compliance with the court
order if the terms and conditions
as advertised are those referred
to in the affidavit of Wyles?
I have considered the authorities in
respect of the interpretation of a court’s judgment. The
intention must be ascertained
“…
primarily
from the language of the judgment or order
…
.”.
1
.
In
Natal
Joint Municipal Pension fund and Endumeni Municipality
2
Wallis JA had cause to consider the
proper approach to interpretation. The current approach is
encapsulated at paragraph 18 of
the judgment.
‘
The
present
state of the law can be expressed as follows. Interpretation is the
process of attributing meaning to the words used in
a document, be it
legislation, some other statutory instrument, or contract, having
regard to the context provided by reading the
particular provision or
provisions in the light of the document as a whole and the
circumstances attendant upon its coming into
existence. Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules
of grammar and syntax; the
context in which the provision appears; the apparent purpose to which
it is directed and the material
known to those responsible for its
production. Where more than one meaning is possible each possibility
must be weighed in the
light of all these factors. The process is
objective not subjective. A sensible meaning is to be preferred to
one that leads to
insensible or unbusinesslike results or undermines
the apparent purpose of the document. Judges must be alert to, and
guard against,
the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To
do so in
regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation. In a contractual
context
it is to make a contract for the parties other than the one
they in fact made. The “inevitable point of departure is
language
of the provision itself.” read in the context and
having regard to the purpose of the provision and the background to
the
preparation and the production of the document ’
.
I align myself with the approach
adopted by Wallis JA to interpretation. In addition having regard to
paragraphs 25 and 26 of
his judgment it is clear one cannot
ascertain the meaning of words in the abstract. Consequently the
provisions of the court
order and the words used must be interpreted
in the “context in which they were used” and a meaning
must be “ascribed
which would avoid an absurdity.” The
interpretation which I must give to the order must not lead to an
“impractical,
unbusinesslike or oppressive consequence.”
I am of the view that the
interpretation contended for by the applicant is not the correct
one. To adopt that interpretation,
would not be sensible, would not
achieve a businesslike result and would be oppressive to the
respondents. It would also result
in the order granted being in
conflict with the provisions of the Consumer Protection Act.
Having regard to the context in which
the order was granted, a proper auction in my view is one conducted
in terms of the usual
practice of an auctioneer set out in the
standard terms and conditions prevailing at the time of the auction
sale.
This was a forced sale. The terms and
condtions applicable were those which applied at the time the
auction was conducted and
which complied with the Consumer
Protection Act and regulations. To hold otherwise and allow the
interpretation contended for
by the applicant would result in an
“impractical, unbusinesslike or oppressive consequence.”
One also cannot, in
my view, separate the words ‘proper
auction” from the rest of the words used in the order.
I say so for the following reasons.
If one considers the history of the litigation between the parties
and the order authorising
the auction sale, the appointment of the
first respondent was taken pursuant to a counter application by the
applicant. The applicant
had frustrated and delayed and thwarted
every auction sale which had been conducted prior to the one which
is the subject matter
of this application. The context in which the
order was taken was to force a sale of the property against a
history of acrimonious
litigation between the parties and the
applicant’s conduct of doing everything in his power to
frustrate a sale of the
property and not relinquish control. The
purpose was to achieve a fair sale price by public auction and to
divide the property
between the owners. It was clearly intended to
be a forced sale on short notice subject to the reserve price of R14
million rand.
Prior to the auction, it is clear
that the first respondent advertised the conditions of sale. These
conditions complied with
the provisions of section 45 of the
Consumer Protection Act and the applicable regulations. The
applicant is aware of the changes
to the conditions of sale on 10
January 2012, engaged with the first respondent, through
correspondence yet did nothing about
these changes. In fact he never
raised any objections to them prior to the auction sale either in
correspondence nor in the application
which was dismissed on 24
January 2012 under case no 493/2012.
I agree with the submission of the
second and third respondents, that judgments must be interpreted on
a basis which results in
lawful directions.
3
Section 45 (3) of the Consumer
Protection Act provides that “
a
sale by auction is completed when the auctioneer announces its
completion by the fall of the hammer.
This
justifies the exclusion of clause 4 and any therefore offer received
after the fall of the hammer is incapable of lawful
acceptance.
Section 45 (4)(b) and 45(5) provides
that notice must be given in advance that the auction is subject to
a right to bid by the
owner or auctioneer. Unless notice is given in
advance of the auction sale by the owner or auctioneer and they
comply with the
registration requirements set out in the regulations
they cannot lawfully bid. The applicant did not register as a
bidder.
Consequently, the application must
fail as the interpretation contended for by the applicant cannot be
sustained. The applicant
has not satisfied the requirements either
for a declaratory order or for an interim interdict.
The order I thus make is the
following:
The application is dismissed. The
applicant is directed to pay the first to fourth respondents costs
occasioned by the application,
such costs are to include the costs
consequent upon the employment of two counsel where applicable.
I now turn to the application in case
no 2403/2012. If one considers the history of litigation between the
applicant and the second
and third respondents, it is apparent that
the applicant has done everything to retain control of his interests
in the immovable
property. The second and third respondents have
been thwarted with numerous urgent applications interdicting the
various auction
sales of the immovable property. This application
and the necessity thereof, must also be construed in the light of
the allegations
in the papers filed in case no 1855/2012
I have in the course of preparation
of this judgment, had the benefit of considering the papers annexed
to the various affidavits
referring to such applications and also
had the benefit of perusing the various court files and affidavits
in the various interdict
applications where available. The applicant
has launched no less than 5 interdict applications to retain his
interest in the
property. These are under the current case number
and inter alia case numbers 11769/09; 6396/2010; 13768/2010;
15639/2010 and
493/2012.
In the last of such applications,
case number 493/2012, launched on 24 January 2012, a day before the
auction sale, the applicant
was unsuccessful. As in most of the
applications, the applicant challenges the auction sales due to
deficiencies in the advertising.
The applicant had sought to
interdict the auction sale as he was not consulted prior to the
auction as joint owner and he needed
time to raise the necessary
finance as he wanted to bid at the auction.
At no stage did the applicant in his
founding affidavit challenge the change to the terms and conditions
of auction sale as constituting
a material deviation form the court
order of 1 December 2011. In fact the first time it is raised is in
his founding affidavit
filed in case no 1855/2012. It is also not
raised in any of the correspondence exchanged with the respective
parties legal representatives
prior to the launch of these
proceedings.
He was aware as at 10 January 2012,
of the new conditions of sale. He engaged with the first respondent
but did not seek to set
aside the amended conditions. In fact he
sought to have the auction sale set aside because his offer was not
accepted. In the
one breath he alleges non compliance and in the
next then “accepts” the conditions of sale by making a
counter offer.
In my view he is attempting to obtain an unfair
advantage.
Of concern, is the time taken to
institute the proceedings under case number 2403/2012 and 1855/2012.
The impression gained from
a perusal of the various court files and
specifically having regard to the contents of the correspondence
exchanged, is that
it is the applicant’s
modus operandi
to
change legal representatives to secure an advantage and create in
some instances urgency. In addition, it is highly undesirable
for
legal representatives to litigate via correspondence in the manner
as has been in these two applications.
The general principle that a
successful party is entitled to its costs is trite. However, the
award of costs is a matter in which
a court exercises a discretion
and a court may for good reason in the exercise of its discretion
deprive him of those costs.
See in this regard
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
4
.
If one considers the application in
isolation then it would at first glance appear that the applicant
was entitled to launch the
urgent application and seek to interdict
the transfer pending the declaratory order. However, I am of the
view that the applicant
had no prospects of success in the main
application under 1855/2012. Having regard to the history of the
litigation between the
parties and more specifically the grounds
advanced by the applicant in this application for the setting aside
of the auction
sale and the self created urgency, I am of the view
that in the exercise of my discretion the applicant ought to bear
the costs
occasioned by the application specifically those of the
second, third and fourth respondents.
My reasons for doing so are to
indicate the courts displeasure at the conduct of both the
applicant’s former legal representatives
and the first
respondents having regard to the content of the correspondence
exchanged, which in my view in certain instances
can be considered
defamatory. I am of the view that to grant a costs order to the
first respondent, would give the impression
that courts condone this
type of exchange. I am also of the view that the applicant delayed
in launching the proceedings in this
application and that the
urgency was what is often termed
self-created.
Consequently, the most appropriate
order is the following:-
the application is dismissed.
the applicant is directed to pay the
second, third and fourth respondents costs occasioned by the
application, such costs to
include the costs consequent upon the
employment of two counsels where applicable.
______________
HENRIQUES J
DATE OF HEARING: 28 MARCH 2012
DATE OF JUDGMENT; 10 AUGUST 2012
APPLICANTS ATTORNEYS: H.S. TONI
APPLICANTS COUNSEL N.SINGH SC AND K J
CHETTY
FIRST AND FOURTH
RESPONDENTS ATTORNEY MAHARAJ ATTORNEYS
COUNSEL A.W.M HARCOURT SC
SECOND AND THIRD
RESPONDENTS ATTORNEY KRISH NAIDOO
GOVENDER AND CO
COUNSEL M PILLEMER SC AND M MANIKUM
1
Van
Rensburg and Another NNO v Naidoo and Others NNO:Naidoo and Others
NNO v Van Rensburg NO and Others 2011(4) SA 149 (SCA) at
paragraph
42
2
[
2012]
2 All SA 262
(SCA)
3
Amalgamated
Telecommunications Contractors (Pty) Ltd v Telkom SA Ltd and Others
[2005] 4 All SA 415
(T)
4
1948
(1) SA 839
(A)